Why Don't Democratic Voters Care About the Courts (as Much as Republican Voters Do)?

by Michael C. Dorf

My latest Verdict column discusses a brief eruption of the progressive Internet last week in response to the false claim that Pete Buttigieg announced that he would seek to name justices like Anthony Kennedy to the SCOTUS. As I explain in the column and as I also explained in a Twitter thread (which you can read "unrolled" here) last week, that's not what happened. Rather, Buttigieg mentioned Kennedy in the context of his explanation of a proposal to depoliticize the Supreme Court.

My Verdict column first criticizes the Buttigieg critics who jumped on him without bothering to read what he actually said; it then pivots to criticize Buttigieg's goal of depoliticizing the Court. I explain that the Court has pretty much always been political and that to the extent that it is now more clearly embroiled in partisan politics than in some other periods, the problem is not the appointments process but polarization in Congress.

Here I want to return to some of the criticism of Buttigieg. As I note in the column, to distinguish himself from the position he incorrectly assumed Buttigieg had endorsed, Bernie Sanders tweeted that he'd like to see more justices like Ruth Bader Ginsburg and Sonia Sotomayor. Mayhem ensued, as Bernie Bros and Bernie Sisters tweeted the equivalent of "amen" (and what struck me as a surprisingly large number of animated gifs of basketball players slam-dunking).

Less childishly, earlier this month Demand Justice issued its "short" list of 32 potential Supreme Court nominees for the next Democratic president. It's an excellent list that includes several people with whom I have been friends for decades. But it might not be very good politics.

The explanation for the list on the Demand Justice webpage states:
In 2016, Donald Trump released a shortlist of possible Supreme Court picks, and it succeeded in rallying conservative voters to his side. In 2020, the Democratic candidates running for president should also state what kind of justices they would appoint. Doing so would show their commitment to the Supreme Court as an issue and draw a clear line in the sand about what is at stake in the coming election.     
Certainly I, as a constitutional law professor and a citizen who cares about the Supreme Court, would like to see a well-informed debate about the Court and judicial appointments. But I'm not sure that most Democratic voters share that view. It appears that Republican voters care more about the courts than Democratic voters do, while swing voters probably don't care much at all. Thus, focusing on the courts is not a good way for either party to win Independents, but it will do a better job of motivating the Republican base than the Democratic base.

In a moment, I'll try to explain why Republican voters care more about the courts than Democratic voters do, but first, let me try to show that they do. I'll look at some polling numbers.

(1) A Gallup poll on the eve of the 2018 midterm election found that roughly equal percentages of Republicans (66%) and Democrats (65%) rated the then-very-recent confirmation of Brett Kavanaugh to the Supreme Court as "very" or "extremely" important. That sounds like a data point that contradicts my hypothesis, until you drill down a bit deeper. For Republicans, the Kavanaugh confirmation was the seventh most important of the twelve issues polled, while for Democrats it was only the tenth. That prioritization itself is significant. More significant still is the fact that the Kavanaugh confirmation remained salient to Republicans even though they won. One would expect the issue to be much more important to Democrats who should have been outraged over having lost the battle over Kavanaugh. The fact that they were no more concerned--and in terms of prioritization, less concerned--suggests pretty strongly that the baseline level of concern about the courts is lower for Democrats than for Republicans.

(2) Polling data from 2018 are even starker. Here's an analysis (backed by data) from Vox in June 2018:
One of the most underappreciated reasons that Donald Trump won the 2016 election was voters motivated by a vacancy on the Supreme Court. One in five voters told CNN in an exit poll that the Supreme Court was one reason they had cast a ballot. Of the voters who said it was the “most important factor” in their decision, 56 percent voted for Trump. According to the Washington Post, 26 percent of all Trump voters polled said that the Supreme Court was the basis of their decision.
There is nothing comparable on the Democratic side.

(3) Meanwhile, Democratic politicians have every incentive to know what Democratic primary voters care about. Yet, as Dahlia Lithwick observed in August of this year, Democrats on the debate stage barely mention the courts.

Okay, what explains the asymmetry? One possibility is that the courts are a losing issue for Democrats. But that's not true. For example, a Pew survey in the summer of 2018 asked voters their general views about issues that could come before the Court. Of six issues surveyed, the public favored the liberal side on five of them (abortion, campaign finance, firearms, labor unions, and marriage equality), with the conservative side only holding sway on the death penalty. And although answers to this question have fluctuated over the years, the last time they were asked (2018), more Americans (55%) said that the Supreme Court should base its rulings on what the Constitution means today than said it should rule based on original meaning (41%). That should also favor the perspective of likely Democratic appointees and thus the candidates who would play a role in nominating them.

Thus, we cannot explain relative indifference to the courts on the part of Democrats by the strength of their substantive case to the American People. If the Democratic base cared about the courts, it could push judicial appointments onto the agenda without risking a backlash from independents.

So why don't Democratic voters care as much about the courts as Republican voters do? Part of the answer might be that on the key issues about which the Court is seen as salient--especially abortion--Republican voters care more. Even though a clear majority of Americans don't want to see Roe v. Wade overturned, those who do probably care more intensely about the issue, so they vote on it.

Meanwhile, Democratic voters perceive that the courts are not central players on the issues about which they care most, which include health care, civil rights, economic justice, global warming and the environment more broadly, and gun control. They're wrong in that perception; the courts can through statutory interpretation and constitutional invalidation cancel victories that might be obtained on each of these issues through legislation or executive action; the courts can also effectively block legislation or executive action by striking down laws that aim to level the political playing field and by upholding voter suppression and gerrymandering that entrench minority-Republican control.

So Democratic voters should care about the courts, if only as an indirect means of ensuring that they can successfully pursue their largely legislative agenda. Getting them to care will require political leadership. In that regard Buttigieg is a mixed blessing. On one hand, as Lithwick notes in the article linked above, he is the one Democratic presidential candidate who has been making the courts and the Supreme Court in particular a key issue. On the other hand, the way he has been doing it--by aiming at depoliticizing the Supreme Court--is not exactly going to excite the Democratic base about the issues they care most about.